WASHINGTON–If anything was clear from Friday’s appeals court hearing in the accounting firm subpoena case, President Trump is going all in on the argument that Congress has almost no right to investigate or regulate his conduct.
The hearing, which lasted more than double the one hour it was allotted, featured Trump’s personal attorney doubling down on an a number of incredible claims. Attorney William Consovoy told the court that there is almost no legislation Congress could constitutionally pass to rein in any unethical behavior by the President. Because of that, Consovoy argued, there were no legitimate legislative reasons for the House Oversight Committee to subpoena Trump’s accounting firm for his finances.
The judges on the court at times appeared surprised by how extreme Consovoy’s theory was.
“Imagine, in the future, you have the most corrupt president in humankind, openly flaunting it, what law could Congress pass?” Judge Patricia Millett, an Obama appointee asked
Consovoy said that it was “very hard to think of one.”
The case is a lawsuit Trump brought against the accounting firm Mazars to block it from complying with a subpoena for the Trump family’s and business’ financial records. The House Oversight Committee has intervened in the case to defend the subpoena, and a district judge already rejected the President’s arguments.
But on Tuesday, Consovoy did not appear humbled in the least by the monumental smackdown he received from the district court. He conceded not an inch to the idea that Congress might be able to pass a law based on what it learned of Trump’s finances. He said that even if Congress could, the House’s claims that it’s looking at potential legislation were not to be trusted.
This argument came to head toward the end the first hour he spent arguing in front of the court.
“I take it your theory is that he’s absolutely immune to any oversight? Is that right?” Judge Millet asked Consovoy, who would only offer the Presidential Records Act as an example of whether Congress could regulate the President.
“Is that it?” she asked, her voice raised, as Consovoy struggled to offer another example of where Congress could address the President’s conduct.
“I don’t want a litany! I want an example,” Millet demanded.
Throughout the hearing, Millett and the other Democratic appointee, Judge David Tatel, floated several different types of laws that could be inspired by a probe into a President’s finances. What about new financial disclosure law? Unconstitutional, Consovoy claimed. They pointed to the ethics-in-politics legislation the House has already passed, and Consovoy said that measure raised constitutional issues, too.
They even constructed a potential law in which the a President was given two options for a salary (which Congress is constitutionally authorized to set): one if he complied with a financial disclosure requirement and one if he didn’t.”
“When it comes to [presidential] conflict of interest, [is there] nothing Congress can do?” Millett asked.
When Tatel asked about the constitutionality of a law that strengthened the enforcement ability of the Office of Ethics, perhaps with more funding, Consovoy would only say that was a harder question.
Underlying this argument was another, perhaps crazier one: that in assessing the legality of the House’s subpoena, the court was required to assess the legality of any potential legislation that could arise from the lawmakers’ investigation.
Judge Tatel tried to put the burden back on Trump and pointed to the “very generous” test the Supreme Court has put on the legislature.
“It seems to me that you would have to show that no law” could come out of the information sought from this subpoena, Tatel said. Consovoy disagreed.
The judges brought up Congress’ authority to investigate the executive branch’s compliance with the law. Consovoy claimed that the office of the President is not part of the executive branch in that way.
He said that Congress could investigate corruption with regards to an agency, but not with regards to the President.
He argued that if Congress wanted to investigate broadly the effectiveness of the law, it could not target one individual person’s compliance.
“I don’t think it’s fair to equate the office of the president to Mr. or Mrs. Smith of the street,” Millett said.